By George Bunn, Consulting Professor, Stanford Center for International Security and Arms Control

To the Editor:

The widespread condemnation of the Indian and Pakistani nuclear tests is not based, as some have charged, upon racism, religious bias or an attempt to prevent technological advances by South Asian nations. The May tests violated a global norm against any more counties with nuclear weapons, a norm begun 30 years ago with the signing of the nuclear Non-Proliferation Treaty (NPT). Most countries of the world now observe this norm, including over 10 that once possessed nuclear weapons or had nuclear-weapon programs. These countries in particular have reason to be outraged that India and Pakistan have chosen to thumb their noses at the norm. If this norm is to be preserved, violators must suffer serious consequences or the norm will become a paper tiger.

The NPT defines a nuclear-weapon state—permitted by the treaty to possess and test nuclear weapons—as "one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967." This definition limited this status to five countries: the United States, the Soviet Union (now Russia), Britain, France and China (which had attacked the NPT negotiation).

India, a member of the conference that produced the NPT, did not object to this definition. Indeed, New Delhi was a strong proponent of the language now in the treaty requiring member-states to negotiate in good faith to halt the nuclear arms race (including nuclear testing) and to achieve nuclear disarmament. In an attempt to gain India's signature, American, British and Soviet negotiators drafted a joint statement that was intended to assure India that it would be defended against possible nuclear attack. But India saw the assurance as insufficient and chose not to sign the NPT.

As a result, Pakistan did not sign the NPT either. However, over the next 30 years, almost all of the rest of the world did. The NPT now has 185 members—equal in number to the membership of the United Nations. The only significant countries that remain outside the NPT are the three de-facto nuclear-weapons states: India, Israel and Pakistan. (Brazil has signed but not yet ratified the NPT; it is, however, a member of the Latin America nuclear-weapon free-zone treaty. Cuba has signed the Latin American treaty but not yet ratified it.)

Can the global non-proliferation/no-testing norm be applicable to India and Pakistan, even though they have refused to join both the NPT and the Comprehensive Test Ban Treaty (CTBT)? It is generally accepted that even those countries that have not joined the UN (such as Switzerland) are nevertheless bound by the UN Charter's prohibition against "members" using "the threat or use of force against the territorial integrity or political independence of any state." (Article 2(4).) Thus, non-parties to treaties can sometimes be bound by them. Is this such a case?

The UN Charter authorizes the UN Security Council to take action against a threat to international peace and security, whether the state or states creating the threat have violated a treaty or are party to a treaty that prohibited conduct such as India's and Pakistan's nuclear tests. In 1992, the Security Council announced that the proliferation of weapons of mass destruction constitutes a threat to international peace and security, thus giving the Council authority to take action. The statement (S/23500) did not say that any offending proliferator had to be a party to the NPT or any other treaty to cause such a threat by its acquisition of nuclear weapons. On June 6, 1998, the Council unanimously passed Resolution 1172, reiterating this statement and condemning the Indian and Pakistani tests in terms that suggested that those tests both violated a global norm and threatened international peace and security. The Council expressed grave concern "at the challenge that the tests…constitute to international efforts aimed at strengthening the global regime of non-proliferation of nuclear weapons." It reaffirmed the "crucial importance of the [NPT] and the [CTBT] for global efforts toward nuclear non-proliferation and nuclear disarmament." Seeming to perceive both threats to peace in South Asia and to the global norm created by the NPT and CTBT, the resolution states that the Council:

"1. Condemns the nuclear tests conducted by India…and by Pakistan…;

"3. Demands that India and Pakistan refrain from further nuclear tests and in this context calls upon all states not to carry out any nuclear weapon tests explosion or any other nuclear explosion in accordance with the provisions of the [CTBT];

"7. Calls upon India and Pakistan immediately to stop their nuclear weapons development programmes, to refrain from weaponization or from deployment of nuclear weapons, to cease development of ballistic missiles capable of delivering nuclear weapons and any further production of fissile material for nuclear weapons…;

"8. Encourages all States to prevent the export of equipment, materials or technology that could in any way assist programmes in India or Pakistan for nuclear weapons or for missiles capable of delivering nuclear weapons…;

"11. Expresses its firm conviction that the international regime on the non-proliferation of nuclear weapons should be maintained and consolidated and recalls that in accordance with the [NPT] India or Pakistan cannot have the status of a nuclear-weapon state;

"13. Urges India and Pakistan and all other states that have not done so, to become parties to the [NPT] and to the [CTBT] without delay and without conditions;…"

This language clearly states that not only does the non-proliferation/no-testing norm apply to India and Pakistan, but that the no-testing norm should apply to the five nuclear-weapon states even though the CTBT has not yet formally entered into force. Those countries that have signed the CTBT are obligated by international law not to take any steps inconsistent with the treaty's purposes as long as they intended to ratify it. (See ACT, October 1996.) However, Resolution 1172 goes beyond that. It calls upon "all states [whether they have signed the CTBT or not] not to carry out any nuclear weapon tests." The Council clearly perceived that a no-testing norm is in effect for all states because its violation would jeopardize the non-proliferation regime and threaten international peace and security, the Council's most important responsibility. Showing its continuing concern, the Council decided to "remain actively seized of the matter," and asked UN Secretary-General Kofe Annan to report to it on steps taken by India and Pakistan to comply with the resolution.

The existence of a universal norm against proliferation is also apparent from the condemnations of the Indian and Pakistani tests by many countries. On June 2 at the Geneva Conference on Disarmament (CD), more than three-quarters of the 61 members joined in a statement condemning the Indian and Pakistani tests and calling on both to renounce their nuclear weapons programs. Some CD participants that belong to the Organization of the Islamic Conference did not support the statement. They had wanted the CD statement to contain a condemnation of Israel's nuclear weapon program as well as the Indian and Pakistani tests or a strong call for negotiations for nuclear disarmament.

On June 12, the foreign ministers of the G-8, representing the largest developed countries, unanimously condemned the tests. Canada, Germany, Italy and Japan—the non-nuclear-weapon state G-8 members—could all have produced nuclear weapons if they had not chosen to join the NPT instead. Thus, they had particular reason to be outraged at the tests. At the invitation of the G-8, Argentina, Brazil, South Africa and Ukraine—all countries that had actually given up nuclear weapons or nuclear weapons programs—supported the statement. Other countries and regional organizations made similar statements.

While the condemnation around the world was not universal, many countries joined in. The various statements seemed to express both anger that India and Pakistan were defying the non-proliferation/no-testing norm, and fear that the tests could threaten that norm if serious consequences for India and Pakistan did not follow. Just as national laws will be weakened by failure to enforce them, violation of international norms must produce serious consequences for the violators or others will choose the same path. At the same time, India and Pakistan are not criminals that can be locked up. Diplomacy as well as condemnation will be necessary to achieve a resolution of the problem.

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